On appeal, as noted, father argues that
the evidence presented at the October 2008 hearing did not justify taking
jurisdiction. He focuses in particular on the juvenile court's apparent
reliance on his refusal to complete the recommended OnTrack program; he argues
that, by relying on that failure, the court shifted the inquiry from the
children's circumstances to his own condition. Moreover, father maintains that
the juvenile court's decision to take jurisdiction stemmed from considerations
of fairness to other litigants who had followed the court's recommendations,
and that such considerations were not lawful. The state's response does not
directly address the role that father's refusal to complete the OnTrack program
played in the juvenile court's decision. Rather, it argues that the totality
of the evidence was sufficient to show that the children's "condition or
circumstances are such as to endanger [their] welfare." ORS
419B.100(1)(c). The state focuses on the following facts in addition to
father's refusal to participate in the recommended course of treatment: (1)
father denied that he had an alcohol problem; (2) although father claimed to
have been sober for approximately one year before the October 2008 hearing, the
record demonstrates that he used alcohol in October and December 2007; (3)
father failed to provide any verification of his attendance at AA meetings; and
(4) father's alcohol use causes him to "act out" toward the children,
which scares them. In other words, the state contends that"there
is sufficient evidence in the record to establish by a preponderance of the
evidence that father's alcohol dependence and his unwillingness to participate
in treatment pose a reasonable likelihood of harm to the children."

Although we find this to be a close
case, we conclude that the court erred. Father's refusal to participate in
treatment is a serious concern, as is his refusal to provide UAs, and we do not
mean to downplay the importance or the wisdom of the court's recommendations.
Further, we recognize that drinking to excess can be harmful or dangerous to
children and that father's continued sobriety is not guaranteed. We are
nonetheless persuaded that the state did not produce sufficient evidence in
this case. It bears repeating that "[t]he key inquiry * * * is whether,
under the totality of the circumstances, there is a reasonable likelihood of
harm to the welfare of the child." T. S., 214 Or App at 191.
Here, we perceive little if any evidence that father's condition was harmful to
the children in the past. From the record, we learn that he "act[ed]
out" when he drank, that his conduct when drinking frightened the
children, and that drinking made him mean and "controlling."
Obviously, that is not ideal parenting. However, without more, it is not
inherently or necessarily more harmful or dangerous than other varieties of
parenting that would, by no stretch of the imagination, justify state
intervention into the parent-child relationship. Passing out is a different
matter; had father been the only caregiver in the home when that occurred, we
would readily conclude that doing so endangered the welfare of the children.
However, at all relevant times, father was living with Tabitha, a nondrinker,
and there is no evidence that she was not in the home when father drank himself
unconscious.

More importantly, however, even if we
were convinced that father's condition did endanger the welfare of the
children before October 2007, we are not persuaded that, at the time of the
hearing, a preponderance of the evidence supported the conclusion that the
children were still at risk. "[G]iving considerable weight to the
[credibility] findings of the trial judge who * * * observe[d] the witnesses
and their demeanor," State ex rel Juv. Dept. v. Geist, 310 Or 176,
194, 796 P2d 1193 (1990), we, like the juvenile court, find Tabitha's testimony
that father last used alcohol in December 2007, 10 months before the hearing,
credible, and the state does not dispute that evidence. The state's second
allegation, that, "despite prior services offered * * * through DHS and
other agencies, * * * father has been unable and/or unwilling to overcome the
impediments to his ability to provide safe, adequate care to" the
children, fares no better. The only evidence presented by the state regarding
father's risk of relapse was an OnTrack evaluation, then one and one-half years
old, in which Cooper stated that father's risk of relapse at that time had been
"severe" due to his denial that he had an alcohol problem and
resulting unwillingness to change. But the state has failed to show that any
such risk existed when the hearing took place; rather, the undisputed evidence
is that father last used alcohol 10 months earlier and had since made the
decision not to drink "for [him]self, for [his] children, [and] to better
[his] life." Moreover, to the extent that father's parenting when sober
was an issue, we find that his successful completion of the parenting program
alleviates that concern.

1.Father
also argues that the juvenile court erred in its disposition of the case, ORS
419B.325, by placing the children in the legal custody of DHS, ORS 419B.337,
and granting guardianship of the children to DHS, ORS 419B.370. Because we
conclude that the juvenile court erred in exercising jurisdiction, we need not
address father's alternative argument.